Adoption and Legal Guardianship — consequences in the right for the free movement of a family member of an EU citizen

Non EU “family members” of an EU citizen are granted the right of free movement and residence within the territory of EU Member States by the Citizens’ Rights Directive.

Yet, have we ever considered who are actually our “family member” for the European Union law? When is a child considered a member of the family?

The EU Citizens’ Rights Directive defines family members as the spouse (or the partner, under the registered partnership), the dependent direct relatives in the ascending line and those of the spouse/partner and the direct descendant under the age of 21 or dependent of the spouse/partner. The term direct descendant includes both, biological and adoptive children. But what about children under the “legal guardianship”(such as the kafala system), which is considered in some States as a type of adoption or equal to it?

The European Court of Justice (ECJ) has clarified this situation with its judgment C-129/18 (SM v Entry Clearance Officer, UK visa section).

Backgrounds of the case C-129/18

Mr and Ms M, both of them having the French nationality, is a couple married in 2001. They travelled to Algeria in 2009 and applied for guardianship of an Algerian minor (hereinafter SM) under the kafala system. The application was successful and the couple were assigned parental responsibility under Algerian law. In 2011, SM’s surname was changed to Mr. and Ms M’s surname. In May 2012, SM applied for entry clearance for the United Kingdom as the adopted child of an EEA national, yet her application was refused by the Entry Clearance Officer on the ground that guardianship under the Algerian kafala system was not recognised as an adoption under United Kingdom law and that no application had been made for inter-country adoption.

The Court’s findings

With judgement C-129/18 the ECJ clarified two important points.

1. In order to be considered a direct descendant (in matters of free movement), the “parent-child relationship” must be clear and must be demonstrated to the competent authorities. A child who has been placed under permanent legal guardianship (such as the kafala system) similar to adoption, cannot be considered a “direct descendant” due to the fact that there is no parent-child relationship between them.
2. However, the ECJ pointed out that even though minors under the kafala guardianship cannot be considered a direct descendant, the competent national authorities should facilitate the entry and residence of such child as one of other family members of an EU citizen, taking into consideration the circumstances of the case, the best interests of the child, the principles set forth by articles 7 and 24(2) of the Charter of Fundamental Rights of the European Union, etc.

Kafala system under Algerian law.

Having read this article, one can ask “why did the parents choose the kafala guardianship instead of a proper adoption?”. If the future parents have the possibility to actually have the possibility to adopt the minor instead of becoming the legal guardian of a child, it might be advisable to opt for the first option (for immigration matters). However, in most of the cases this may not be possible as countries where kafala system (or other types of legal guardianship) are applied, adoption may actually be prohibited, which is quite a common rule in some Islamic countries. There are many differences between adoption and legal guardianship such as kafala system. The most evident difference is that kafala is temporary as it is effective only with a minor. Once he/she becomes and adult, this relationship ceases any effects and validity. Yet, due to the fact that, under the kafala system, the future parents will actually have the same rights and obligations of parents, at international level, some States considere it equivalent to adoption.

Comments

From a legal point of view, the findings of the Court are very clear and understandable. Especially because there are no uniform rules and concepts regarding adoption at EU level, which makes it a matter of each Member States national law. Therefore, it will be interesting to see the final finding of the UK court as it will have to decide on whether cases of minors under legal guardianship can have the same (or limited) rights as an adopted child in matters of the right to move and reside freely within the EU Member States’ territory and what should be the appropriate requirements and procedures in order to assess each of such cases.